Wednesday, October 30, 2013

Background. Ricardo Apollonio was charged with excessive
speeding. HRS § 291C-105(a)(1). The complaint and oral arraignment failed to
allege the requisite state of mind. In other words, there was nothing in the
charging instrument indicating that the conduct was done intentionally,
knowingly, or recklessly. At trial, the HPD officer testified that he cited
Apollonio for excessive speeding after using the LTI 20-20 laser gun (check itout here).

The officer testified that he was using the laser gun and
that he was trained to operate the gun. He said that his training consisted of
“class work, going over the operator’s manual, and hands-on time with the laser
itself.” His trainer was another HPD officer. The officer testified that the
manual was provided by the manufacturer and Apollonio objected on the grounds
that the officer lacked the personal knowledge and hearsay. The district court
overruled the objection on the grounds that “those issues have been resolved in
some other case.”

According to the officer, the manual identified four tests
necessary to establish that the laser gun was working properly: the self-test,
the display test, the scope alignment test, and the delta distance test. All
four were done on the date in question and according to those tests, the gun
was working properly. Then the officer testified that he stood on Kamehameha
Highway in an area where the speed limit was 35 mph. He used the laser gun on
Apollonio’s vehicle and clocked him in at 76 mph. On cross-examination, the
officer admitted that during his training there were only HPD officers and he
had no personal knowledge if anyone from the manufacturer of the laser gun was
there.

Apollonio’s motion to strike the officer’s testimony based
on a lack of foundation was denied. The district court found him guilty.
Apollonio appealed. The ICA held that the foundation was adequate and affirmed.
Apollonio petitioned for certiorari and for the first time raised the
sufficiency of the charge.

The Defective Charge
Warrants Remand for New Trial . . . First
off, the HSC held that the charge was defective for the failure to include mens rea. The HSC made it clear that a
knowing, intentional, or reckless state of mind is required in excessive speeding
prosecutions. State v. Nesmith, 127
Hawaii 48, 56, 276 P.3d 617, 625 (2012). The HSC took the opportunity to make
it clear that when the charge fails to include the state of mind, it simply cannot
be construed to have reasonably stated an offense and so it must be dismissed
without prejudice. Id.See also State v. Gonzalez, 128 Hawaii
314, 324, 288 P.3d 788, 798 (2012).

The Foundation Needed
Before the Results of the Laser Gun can Come in. Before the results of the laser gun comes
in at trial, the prosecution must show (1) that the accuracy of the laser gun
was tested according to the procedures recommended by the manufacturer and (2) “the
nature and extent of an officer’s training in the operation of a laser gun
[met] the requirements indicated by the manufacturer.” State v. Assaye, 121 Hawaii 204, 213-215, 217, 216 P.3d 1227, 1236-1238
(2009).

Nothing Personal . . . The HSC examined whether it was enough for
the officer to assume that the manual came from LTI. “A witness may not testify
to a matter unless evidence is introduced sufficient to support a finding that
the witness has personal knowledge of the matter.” HRE Rule 602. Personal
knowledge means that the witness “perceived the event about which he testifies.”
Commentary, HRE Rule 602. “[W]itnesses may not testify based on ‘guesswork’ or ‘speculation,’
such as when the witness concludes that a fact ‘must have’ been true.” Addison
M. Bowman, Hawaii Rules of Evidence
Manual § 602-1(5).

The officer’s testimony that the manual came from the
manufacturer was based on the kind of “guesswork” and “speculation” Prof.
Bowman was cautioning against. The problem, according to the HSC, was that the
only people at the officer’s training were other officers. Nobody from LTI gave
him the manual. He never met an LTI representative and he did not know personally
if anyone from LTI provided these manuals to HPD. This was a lack of personal knowledge.

Appearances are Deceiving. On top of that, the officer’s testimony
about the appearance of the manual did not arise to personal knowledge. The
officer may have testified that the manual cover read “LTI 20-20 Operator’s
Manual,” but that alone did not connect it to LTI. There was no evidence that
LTI produced the manual or that the manual was written by anyone at LTI. Thus,
the district court erred in finding sufficient evidence linking the manual to
the manufacturer.

The Second Prong: Manufacturer-Approved
Training, not just Training.
The HSC also rejected the district court’s finding under the second prong too.
Under this prong, the prosecution must establish that the officer’s training
satisfied the laser manufacturer’s requirements. Assaye, 121 Hawaii at 215, 216 P.3d at 1238. According to the HSC,
this requires a showing of both (1) the training requirements set forth by the
manufacturer, and (2) the officer was actually trained by the operator of the
laser gun. It is not enough for the officer to describe his training. There has
to be a link to the manufacturer and none was presented here.

Chief Justice Recktenwald’s
Dissent. The CJ agreed with
the majority that the judgment must be vacated and remanded to be dismissed
without prejudice because of the lack of mens
rea. The CJ believed that when the challenges the charge for the first time
on appeal, the appellate court’s review should be limited to plain error. That means
that the appellant has to show prejudice by the error. The CJ pointed out that
the previous cases in Nesmith and Gonzalez, the defendants challenged the
sufficiency of the charge before the trial court. Here, Apollonio waited until
after the district court convicted him and
after the ICA affirmed. Apollonio raised the issue only for the first time in
his petition for certiorari. Because he waited so long, the CJ would have
construed the charge liberally under State
v. Motta, 66 Haw. 89, 90, 657 P.2d 1019, 1019-20 (1983) and State v. Wells, 78 Hawaii 373, 381, 894
P.2d 70, 78 (1985). Under that liberal construction, the CJ would have found
the charge sufficient. He also believed that a deficient charge is not a
jurisdictional matter thereby allowing the plain error rule. Justice Nakayama
joined.

The Big Concurrence. The CJ (and Justice
Nakayama) note that they agree with the majority about the foundation and it
should be remanded for a new trial.

Friday, October 11, 2013

Background. Daniel Nakano was charged with operating
a vehicle under the influence of an intoxicant. HRS § 291E-61. The complaint
alleged that Nakano either committed the offense by having an amount sufficient
to impair his normal faculties or guard against casualty in violation of HRS §
291E-61(a)(1) and or by operating a vehicle with a BAC of 0.08 or more in his
blood or breath in violation of (a)(3). The complaint did not plead any state
of mind. Nakano and the prosecution entered a plea agreement. Nakano requested
a conditional plea allowing him to plead no contest to HRS § 291E-61(a)(1) and
challenge the sufficiency of the plea on appeal. There was nothing in the
change-of-plea form or during the colloquy that indicated if the plea included
the other theory under (a)(3). The prosecution agreed to the conditional plea
and the district court sentenced Nakano, but stayed it pending appeal.

On appeal, the ICA held that pursuant to State v. Nesmith, 127 Hawai'i 48, 276P.3d 617 (2012), the (a)(1) theory. The ICA vacated the judgment and then held
on remand that the State could prosecute Nakano for violation of (a)(3). Nakano
moved to reconsider on the grounds that he never pleaded no contest under the
(a)(3) theory and the ICA denied the motion in part. Nakano petitioned for
cert.

Have an A-1 Day.The HSC first held that the ICA correctly
found a Nesmith violation. The
complaint did not include a state of mind for the (a)(1) violation—operating
with “an amount sufficient to impair the person’s normal mental faculties or
ability to care for the person and guard against casualty.” That rendered the
charge insufficient and must be dismissed without prejudice. State v. Spearman, 129 Hawaii 146,151-52, 296 P.3d 359, 364-65 (2013). The issue for the HSC is whether the
prosecution could move forward on remand with the (a)(3) violation. It held it
could not without breaching the plea agreement.

A Plea Agreement is a
Contract. “A plea
agreement is essentially a contract entered into between the State and the
defendant, in which the defendant agrees to plead guilty or no contest to a
charge and to forego certain constitutional rights (including the right to
trial) in exchange for which the State promises some form of leniency or
cooperation in prosecution.” State v.
Adams, 76 Hawaii 408, 412, 879 P.2d 513, 517 (1994). The prosecution “is
bound by the terms of a plea agreement which serves as the inducement or
consideration for a defendant’s guilty or no-contest plea.” State v. Abbott, 79 Hawaii 317, 319, 901
P.2d 1296, 1298 (App. 1995). And when the plea is the result of a promise by
the prosecution “so that it can be said to be part of the inducement or consideration,
such a promise must be fulfilled.” Santobello
v. New York, 404 U.S. 257, 262 (1971).

The Prosecution has to
Uphold its End of it.
Neither the change-of-plea form nor the oral colloquy indicated if Nakano was
pleading no contest for just the (a)(1) method or the (a)(3) method or both.
Nonetheless, the prosecution agreed to conditional plea pursuant to Hawaii
Rules of Penal Procedure (HRPP) Rule 11(a)(2). Because the record did not have
any indication if the prosecution intended to give up the proceedings under
(a)(3), that term of the plea agreement had to be construed by the HSC.

According to the HSC, this was “at the very least” an
ambiguous term. The “plea agreement containing terms that are ambiguous or
reasonably susceptible to different interpretations is strictly construed in
favor of the defendant.” State v. Abbott,
79 Hawaii at 320, 901 P.2d at 1299. Here, the HSC held that the agreement
prohibited the State from going forth on remand with an (a)(3) prosecution.
According to the HSC, if it were to allow the State to proceed on the (a)(3)
prosecution, it would not fulfill the promise it made to Nakano. A breached
plea agreement is more than a civil violation. It “implicates due process, and
the interests of justice.” State v. Miller,122 Hawaii 92, 101, 223 P.3d 157, 166 (2010). And so, on remand, the State
cannot prosecute Nakano on the (a)(3) violation.

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